In modern society there is a tension between democracy and the law which has always existed throughout history. Democracy at its most absolute is tyrannical, brutish and often short lived because of the mass hysteria which can engulf otherwise rational people when they act as a group.
Psychologists called this ‘groupthink’ in the 20th century, ever since we found this flaw we quickly discovered that it had actually given us our most valuable skill putting us at the top of the food chain. This skill is our ability to socialise, which allows us to more effectively organise and in turn work together with a common purpose of survival.
In the age of mass socialisation with technologies such as the telephone then radio, then television and now the internet the double edged sword of our evolutionary advantage has become even clearer. While entire societies have been lifted out of conflict and poverty by the use and abuse of these technologies we have also seen lives ripped apart by them and once great nations fall under mass hysteria. They are in essence completely valueless, attributing value judgements to them alone feels pointless.
Democracy is threatened when these elements of human socialisation are used to breakdown institutions of law which are driven completely by values. Absolute democracy (or populism) cannot guarantee the rights of minorities as only recognition of the majority suffices in any pure form of a democratic polity. The legal system itself needs to be apart from the pressures of democratic governance to avoid this. It can only do this by adopting a layer of elitist cynicism at worst or by engaging with society at large at best in a more constructive fashion.
The legal system in this country has long lived under the notion of ‘separation of powers,’ however even a casual observer will note the absurdity of this notion. The highest court in the land cannot (even with great difficulty) strike down primary statute. There is no ground norm which we can point to as a protection of our demos – like a written constitution or bill of rights. All of these are incredibly uncommon, in the fog of our internal political debate it is important to remember this in a global context.
In Northern Ireland our assembly and executive act mostly with powers devolved to them by the Northern Ireland Act and other legislation (making their decisions ‘secondary’). This has given our courts great scope for judicial review, along with the many sometimes tedious assembly checks and balances, democratic governance here has been wrapped into a layer of legal accountability which has never featured in Westminster politics. This is why a human rights litigation culture has also thrived here and is something we should be proud of as a mark of how far our society has come.
Griffith gave a landmark lecture in 1978 entitled “The Political Constitution” where he asserted that the UK lived under a wholly political system of government wherein constitutional norms (of other states) where not possible nor necessary due to the balance of competing political blocks. These blocks were broadly; Capital and Labour. These old certainties are now gone. The ideologies of today don’t revolve around these never ending economic debates about value, commodification and distribution. Dieter Grimm writes:
Every political unit is constituted, but not every one of them has a constitution. The term ‘constitution’ covers both conditions, but the two are not the same. The term has two different meanings. Constitution in the first sense of the word refers to the nature of a country with reference to its political conditions. Constitution in the second sense refers to a law that concerns itself with the establishment and exercise of political rule. Consequently, the first definition refers to an empirical or descriptive constitution and the second a normative and prescriptive concept. Used empirically, constitution reflects the political conditions that in fact prevail in a specific region at a given time. In the normative sense, constitution establishes the rules by which political rule should be exercised under law.
So where does this leave us in a post Brexit world? That never ending tension of the law, standing as a pillar on the hill versus the people, crowded in emotion looking up at it hungry for changing it or smashing it down if necessary. How should the tightrope be walked upon, with our thin veneer of civility kept in tact?